Chief G. A. Akhiwu Vs The Principal Lotteries Officer Mid-western State Of Nigeria (1969)

LawGlobal-Hub Lead Judgment Report

UDOMA, J.S.C.

This is an application by Chief G. A. Akhiwu (hereinafter to be referred to as the applicant), who was the first defendant in Suit No. B/30/69-The Principal Lotteries Officer, Mid-Western State, Benin City vs. Chief G. A. Akhiwu and A. I. Ehiahbi-which was heard and determined in the High Court of the Mid-Western State holden at Benin City. The Principal Lotteries Officer, Mid-Western State who was plaintiff and A. I. Ehiahbi who was the 2nd defendant in the said suit hereinafter to be referred to as the 1st and 2nd respondents respectively. The claim of the 1st respondent in the High Court fell under two heads in the alternative and read as follows:-

“The plaintiff claims a declaration:-

(a) That the 1st defendant is the person entitled to the sum of £4,000 being the 1st prize of the Mid-Western State Government Lottery drawn at Benin City on the 10th July, 1969; OR IN THE ALTERNATIVE

(b) that the 2nd defendant is the person entitled to the said amount”.

In his judgment, the learned trial judge came to the conclusion that the 2nd respondent, A. 1. Ehiahbi, that is, had won the first prize of £4,000 “in the 11th draw of the Mid-Western State of Nigeria Government lottery held on 10th July, 1969”, and that he was therefore entitled to the prize. Whereupon the court ordered that the sum of £4,000 be paid out to him forthwith by the 1st respondent herein. In considering the evidence before him, the learned trial judge observed that he found the conduct of the 2nd respondent was consistent throughout with that of the real owner of exhibit ‘H’ (the winning ticket No. M083501),

While the applicant struck him as an imposter and a rogue; a man “who had to wrestle with his conscience as to whether to claim the prize won by one whom he had earlier described as a poor teacher or not”; and that “in the end the avarice in him got the better of him”. The court thereupon ordered the immediate arrest of the applicant, and also there and then granted him bail in the sum of £250 with one surety presumably, in the like sum, on condition that the applicant surrendered him-self to the office in charge of crime in the Mid-Western State police head-quarters, who after the investigation should charge the application to court. Further, the court ordered that:-

“All the exhibits in this case be impounded and released to the Nigeria Police, any appeal in this matter to the Supreme Court notwithstanding.”

Soon thereafter, an appeal against the whole of the decision of the learned trial judge was filed by the applicant who at the same time instituted this application in this Court. The applicant seeks from this Court an order:-

“(i) staying execution and further proceedings in the above matter pending the determination of the appeal filed herein and in particular for stay of the order of the learned trial judge directing the police to prosecute the appellant;

“(ii) that the exhibits handed over to the Nigeria Police in the above matter be returned to the Registrar of the Benin High Court forthwith so that such exhibits be dealt with as required by the Rules of this Honourable Court;

(iii) for leave to substitute the Notice of Appeal dated 19th September, 1969 for the one dated 11th of September, 1969, each of which is marked exhibits ‘B1’ and ‘B2’ respectively in the Affidavit filed in support of this Motion; and

(iv) such further or other orders as this Honourable Court may deem fit to make”.

On 2nd December, 1969 when the application came up for hearing Chief F. R. A. Williams, counsel for the applicant informed the court that Mr. G. Ikomi, Senior State Counsel in the Ministry of Justice, Mid-Western State, counsel for the respondents had indicated to him that he was not opposing the application in respect of the relief claimed under items (ii) and (iii). This was readily confirmed by counsel for the respondents. Chief Williams also indicated that he was not pressing his prayer for a stay of execution of the judgment since, according to the counter-affidavit dated the 20th October, 1969, filed by the 1st respondent, the sum of £4,000 involved in the case was, in due compliance with the order of the learned trial judge, promptly paid over to the 2nd respondent on 10th September, 1969.